Musembi v Kejalyne Enterprise & another (Civil Appeal E195 of 2024) [2026] KEHC 6612 (KLR) (15 May 2026) (Judgment)

Musembi v Kejalyne Enterprise & another (Civil Appeal E195 of 2024) [2026] KEHC 6612 (KLR) (15 May 2026) (Judgment) Neutral citation: [2026] KEHC 6612 (KLR) Republic of Kenya In the High Court at Machakos Civil Appeal E195 of 2024 BM Musyoki, J May 15, 2026 Between Alex Katiku Musembi Appellant and Kejalyne Enterprise 1st Respondent Jacob Kikuvi 2nd Respondent (Being an appeal from judgement and decree in Small Claims Court at Machakos (B.A. Luova Adjudicator) claim number E342 of 2024 dated 4-07-2024) Judgment 1.This appeal arises from judgment of the trial court in which the appellant’s claim was dismissed because the court was not convinced that the evidence availed was sufficient to enable the court to assess quantum of damages. The appellant had been involved in a road traffic accident while riding tricycle registration number KTWC 873Z which was hit from behind by motor vehicle registration number KDH 416U. The appellant was claiming special and general damages as compensation for the injuries and costs suffered as a result of the accident. 2.The appellant claimed that the accident was caused by the negligence of the 2nd respondent while the respondents counter pleaded negligence on the part of the appellant. The appellant claimed that as a result of the accident, he sustained bruises on the forehead, blunt injury to the head, blunt injury to the neck, bruises in the upper limbs, degloving injury to the chest and blunt injury to the chest. 3.The trial court found in its impugned judgment that the 2nd respondent was wholly liable for the accident but dismissed the claim holding that the appellant had not proved the pleaded injuries and therefore it could not assess damages. The appellant has pleaded in this appeal that the trial court’s judgment be set aside relying on the following grounds;1.That the learned trial Magistrate erred in fact and in law by failing to give concise statement of the case, points of determination, decision thereon and reasons for her judgment.2.That the learned trial Magistrate erred in law and in fact in failing to consider the appellant’s submissions and documentary evidence and thereby ignoring relevant guiding facts to reach a fair and reasoned determination and thereby dismissed the appellant’s suit.3.That the learned trial Magistrate erred in fact and in law by dismissing the appellant’s case without justification and failing to appreciate the fact that the claimant had proved his case as required by law and particularly failed to take into account the claimant’s documentary evidence in arriving at her decision.4.That the learned trial Magistrate erred in fact and in law by dismissing the claim on the basis that the claimant’s documents filed on the online portal were not visible to the court whereas clear documents had been filed again on 4/6/2024 during the hearing of the claim as the trial court requested.5.That the learned trial Magistrate erred in law and in fact in dismissing the appellant’s claim contrary to the evidence on record and without evaluating the documents filed on the judiciary e-filing portal on 4/6/2024.6.That the learned trial Magistrate erred in law and in facts by applying wrong and inapplicable principal of law in civil case and which did not form any basis to warrant her determination on liability and general damages. 4.The appeal was disposed of by way of written submissions which I have read and considered. I note that the parties have submitted extensively on liability as if the trial court’s finding on the same was against the appellant and in favour of the respondents. I find this line of submissions off the mark because the claim was not dismissed for lack of proof of liability but for lack of proof of injuries. 5.The appellant argues that the court should not have dismissed the entire claim after finding in his favour on liability. This line of submissions can only have merits of there are valid complaints that the appellant had proved the injuries on a balance of probabilities A court’s finding on liability does not make is automatic that a court must award damages. The limp of damages is separate from liability and must be proved to the required standard and a court would be justified to dismiss a claim where the loss is not proved. 6.The reasons the trial Magistrate was referring to in its final order of dismissal were her analysis of the documents produced by the appellant in respect of their legibility; injuries claimed against those pleaded; and the discrepancies on the dates shown therein and lack of the appellant’s names in the documents. In other words, the trial court was concerned by the inconsistency between the documents and the testimony of the appellant. I do believe that this is the part which should be of concern to the parties in their efforts to overturn or uphold the judgement of the trial court. 7.Having said the above, it should not escape my mind that this is a matter from the Small Claims Court which I can only entertain if it is based on matters of law. Section 38(1) of the Small Claims Court Act provides that;‘A person aggrieved by the decision or an order of the Court may appeal against that decision or order to the High Court on matters of law.’ 8.A matter of law can be defined as that which is concerned with interpretation and application of the law to the truth of the fact while matters of facts are concerned with interrogation and establishing the truth of the pleaded facts. Where an appeal complains of the merits of analysis of the evidence, it cannot be said to be on matters of law. In Commissioner of Domestic Taxes v Trical and Hard Limited [2022] KEHC 9927 (KLR), Justice D.S. Majanja (may he continue resting in peace) held that;‘This means that an appeal limited to matters of law does not permit the appellate court to substitute the Tribunal’s decision with its own conclusions based on its own analysis and appreciation of the facts unless the decision of the Tribunal cannot be supported by any evidence.’ 9.It has also been held that where the law limits appeals to matters of law only, the appellate court cannot go into the issues of facts unless the decision of the trial court was too perverse that no court of law properly applying its mind would reach such a decision. In Mwita v Woodventure (K) Limited & another [2022] KECA 628 (KLR), while addressing limitation of a second appeal to matters of law which I find similar to the limitation under Section 38(1) of the Small Claims Court Act, the Court of Appeal held that;‘This is a second appeal. Accordingly, the jurisdiction of this Court is limited to consideration of matters of law. As was held in the case of Stanley N. Muriithi & Another v Bernard Munene Ithiga [2016] eKLR, on a second appeal, the Court confines itself to matters of law only, unless it is shown that the court below considered matters it should not have considered, or failed to consider matters it should have considered, or looking at the entire decision, it is perverse.’ 10.I have considered the issues which I have identified as relevant to this appeal. When the trial court was reaching the decision as it did, the it was interrogating the truth of the pleaded claim that the appellant was injured or not. To me, the analysis by the trial court was sufficient to enable her reach the decision it did. I do not see any perversity in the judgment neither has any been pointed out to me. It is not enough for the appellant to tell this court that the learned Magistrate erred. He must show me that the error he is complaining of was on matters of law. 11.I agree with the holding of my brother Justice Kizito Magare in Ogwari v Hersi [2023] KEHC 20111 (KLR) where he stated that;‘Appraisal of the evidence or non-compliance of the Evidence Act is not a point of law since under section 32 of the Small claims court act, the court is not bound by strict rules of evidence.’ 12.I would have considered the argument that the court ignored documents which were allegedly filed on 4-06-2024 after the court called for legible copies as ignoring evidence which was properly adduced or produced would fall under the realm of matters of law but I do note the point of doing so for two reasons. One is that the proceedings do not show the court ordering or requesting for filing of clear copies. Secondly the lack of the appellant’s name on the documents was not the only reason for dismissal. There were other glaring inconsistencies which the court was entitled to make a finding on. 13.In the premises, I hold that pursuant Section 38(1) of the Small Claims Court Act, I have no jurisdiction to determine the issues raised in this appeal. For that reason alone, this appeal is dismissed with costs to the respondents. DATED SIGNED AND DELIVERED AT NAIROBI THIS 15TH DAY OF MAY 2026.B.M. MUSYOKIJUDGE OF THE HIGH COURT.Judgment delivered in presence of Miss Odero holding brief for Mr. Kitindio Musembi for the appellant and Mr. Guyo for the respondents.